Danjuma Domven Rimdan V. Victor Lar & Ors (1999)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

The appellant and the 1st Respondent in this appeal were candidates in the election into the House of Representative held on 20/2/99 for Langtang North and South Federal Constituency of Plateau State under the platforms of the Peoples Democratic Party (PDP) and All Peoples Party i.e. APP respectively. The 2nd to 10th Respondents (i.e. the INEC officials) conducted the election and the 1st Respondent was declared as duly elected on having scored 26, 475 votes as against his opponent i.e. the appellant who scored 26, 347 votes.

Dissatisfied with the results of the election the appellant (otherwise, the petitioner at the Tribunal) initiated this matter now on appeal in this court against the Respondents on record. In answer to the petition, the 1st Respondent filed a Reply while the 2nd to 10th Respondents filed joint Reply. As found by the Tribunal, both replies traversed all the material allegations contained in the petition and thus issues were properly joined for trial. Among the many issues that went for determination before the Tribunal were two very crucial ones that is to say, as contained in paragraph 10(a) & (b) of the petition and they are:

10(a) “That the 1st Respondent was not duly elected by the majority of valid or lawful votes cast at the election”.

(b) That the 1st Respondent was not qualified to have been elected at the said election”.

At the trial before the Tribunal, the petitioner called evidence in expatiation of his case as made out in the Petition particularly as regards the specific allegations of over-voting and rigging in 5 (five) polling units to Wit Nwur, Walnim, Kamkun Central Lipohock and Zambirim. Similarly, as regards paragraph 10(b) where-in the petitioner upstaged the issue of the disqualification of the 1st Respondent as per Exh. 6 – a Government white paper – to show that he was indicted by a panel of enquiry. After the hearing and an exhaustive evaluation of the issues posed by both parties for determination the Tribunal in a considered judgment held inter alia at page 63 of the record lines 1-12 thus:-

“In the light of the foregoing and based on the totality of evidence adduced, this Tribunal therefore holds/finds as a fact that there was no over voting at the decision conducted on the 20/2/99. Since the answer to the two issues posed is in the negative i.e. there was no proof of disqualification of the 1st Respondent and no proof of over voting, the proper relief that avails the petitioner is that of dismissal of his petition…There is no proof of non-compliance with the law governing the election and there is no proof that the petitioner scored majority of lawful votes cast at the election” (underline for emphasis).

Aggrieved by the decision, the petitioner has now appealed to this court and the Notice and Grounds of Appeal were filed on 23/4/99; in which he took objection to the whole decision. The 5 (five) grounds of appeal contained in the said Notice of Appeal are as subjoined hereunder. A preliminary objection against the Grounds of Appeals has been incorporated in the 1st Respondent’s Brief of Argument. For reasons to become obvious in this judgment Appellant’s counsel has not and indeed, could not have come round to addressing the issues so raised in the preliminary objection. I have to return later to deal with this application.

Grounds of Appeal

1. “The trial Tribunal misdirected itself in law when it held, to wit:

“Surely, the Tribunal would be abdicating its statutory Responsibility and function if armed with the above recited paragraph 15(3) of Schedule 5 of Decree 5 of 1999. It refuses to entertain evidence which goes to explain some ambiguity apparent on some exhibits legally tendered before it.”

And this error occasioned a miscarriage of justice.

2. The trial Tribunal misdirected itself on the fact when it held, to wit;

“We are amazed that despite the seriousness of the allegation made by the petitioner, there is absolute paucity of evidence in his case. There is no proof of non-compliance with the law governing the election and there is no proof that the petitioner scored the majority of lawful votes cast at the election. The petitioner cannot therefore be declared as the elected member of house of Representative for Langtang North and South Federal Constituency of Plateau State. The petition fails in its entirety and is hereby dismissed.

3. The Trial Tribunal erred in law when it assumed jurisdiction to evaluate the evidence of the respondent that was not pleaded, to wit:

“It is noteworthy that the evidence of this witness was not impeached or controverted.” And this evaluation without jurisdiction occasioned a miscarriage of justice.

4. The Trial Tribunal erred in law when it held as it did, to wit:-

The Tribunal is in no problem in holding that some of whole inquiry of the committee referred to by the petitioner is not before it. It would not engage in a wild goose chase to speculate on the issue in prove of the facts alleged. The Tribunal therefore holds that this ground of the petition is not proved.

5. Judgment is against the weight of evidence.”

Let me with respect observe rather promptly at this stage on that extravagantly copious nature of that particulars of error and misdirections so tediously set out in the Notice and Grounds so far as appearance go to buttress the said grounds of appeal and to say that – they are depreciated for their tendency towards shoddiness.

It is now trite that for any appeal to be capable of proper adjudication, the grounds of appeal have to articulate in a succinct manner the appellant’s grievances in law and fact against the decision. In this regard, the grounds have to be simple and circumspectively set out See Abegunde & Ors. v. Adelu and Ors. (1971) 1 NMLR 10 at 13 using ground 2 (two) as an illustration, the particulars of error were set forth thus:-

“The petitioner pleaded in paragraphs 9 and 10 of his petition to wit.”

Appellant’s counsel then proceeded, as it were, to repeat verbatim and indebted, in extenso the whole of paragraphs 9 and 10 of the petition i.e. reflecting the two paragraphs as the particulars of error to the said ground. Surely, this is improper, it not only showed a misconception of what constitutes particulars of error and misdirection but has demonstrated a total misconception of the import of appeal which in other words is an enquiry into the way a dispute is decided by a trial court. See Ajadi v. Okemhum (1985) 4 S/C (Pt.2) 132. However, this court has decided to give the appellant a hearing in the interest of justice even though the particulars of error and the misdirections to the grounds of appeal are unsatisfactory.

Coming back to the main appeal before this court – learned appellant’s counsel has formulated 4 (four) issues in the usual prolix manner that has characterised the grounds of appeal. In contract, the 1st Respondent’s counsel identified one issue for determination while learned counsel for the 2nd to 10th Respondents has formulated two issue. In deciding to adopt the issues as formulated by the 2nd to 10th Respondent’s counsel, I am guided by the fact that they cover all the grounds of appeal; again, they encompass the issues as canvassed by both Appellant’s and 1st Respondent’s Counsel. The two issues are as follows:

1. Whether the Tribunal was right in dismissing the petition of the appellant having regard to the totality of the evidence before it in proof of the alleged over voting.
2. Whether it was established by the Appellant before the Tribunal that the 1st Respondent was ever indicted by “The committee on the recovery of Government property and money from the former State Legislators and local Government political office holders in Plateau State.

Before going into the merits of the appeal, I consider it timely at this stage firstly to determine the question of the competence of the preliminary objection taken by the 1st Respondent’s Counsel in the Brief of Argument.

Ordinarily, an applicant taking a preliminary objection to the hearing of an appeal as the instant one, in this court, has in compliance with Order 3 Rule 15(1) of the Rules of this Court to give the other party to the appeal 3 (three) clear days notice before the hearing of the objection. In essence this rule besides being expedient is solidly grounded in the established principle of avoiding embarrassing or springing a surprise on an appellant. In this matter, given that the 1st Respondent/Applicant has failed to comply with the aforementioned rule – in that the requisite notice of the preliminary objection was only brought to Appellant’s notice by service on his counsel of the 1st Respondent’s Brief of Argument containing the same on the very morning i.e. 10/5/99 that the substantive appeal was fixed for hearing; and furthermore, given that the appellant obviously has slept on his rights as he never reacted to the Notice and Ground of Appeal duly served on him in good time to enable him take the preliminary objection. I am therefore of the view that having failed to meet the condition precedent for hearing of the preliminary objection (as per order 3 Rule 15 (1) above and as the appellant has not at all waived his rights to a notice under the Rules the preliminary objection ought to be struck out.

Accordingly, it is hereby struck out, except to add as per Wali JSC in Tukur v. Government of Gongola State (1998) 1 NWLR (P1.68) 39 at 55 1 S/C; that it is better to go on with the substantive appeal than to resort to preliminary objection.  It is even more so in matters of this nature (i.e. election petitions) where time is of the essence and the interest of the electorates and the Nation as a whole is overwhelmingly paramount. I now return to the consideration of the merits of this appeal on the basis of the two issues adumbrated above.

As I understand Issue No.1 it goes to the root of whether there was before the Tribunal sufficient evidence of such irregularities as over voting to justify overturning the Tribunal’s conclusion that the 1st Respondent was duly elected by a majority of lawful votes. The appellant at the Tribunal set about proving his case by leading evidence as pleaded in paragraphs 9 and 10 of the petition and tendered Exhs 1 to 5 that is, duplicates of EC 8A(1) used by the Presiding Officers in the 5 (five) polling units (i.e. where the malpractices of over voting occurred) to wit:

Nwur, Walim, Kamkun Central, Lipohok and Zambirin. Exhs. 13 to 17 tendered by the Respondents were the originals of Exhs. 1 to 5. These exhibits were duly completed by the Presiding Officers under the following heads:

(i) Number of registered voters;

(ii) Number of accredited voters;

(iii) Number of accredited voters in the queue at the commencement of voting; and

(iv) Number of valid votes cast.

The appellant’s main grouse as gathered from his brief of argument is that the Tribunal acting in error under paragraph 15(2) of Schedule 5 of Decree No. 5/1999 allowed inadmissible evidence given by DW7 – the Presiding Officer for Kamkun polling unit and again, acted in error to have used DW1’s inadmissible evidence to nullify the cogency and authenticity of Exhs. 1 to 5 which showed (in each of them) excess of accredited voters over accredited voters in the queue meaning that there was over voting. And consequently, that if the Tribunal had discarded DW7’s inadmissible evidence and had proceeded to make specific findings on Exhs. 1 to 5 – his contention of over voting would have been upheld.

In another breath the appellant contended it was wrong for the Tribunal acting under paragraph 15(2) of Schedule 5 of Decree No. 5/1999 to “admit unpleaded facts which are legally in admission and rely on the same to give judgment against the petitioner” (See page 3 lines 18 to 20 of the appellant’s brief).

In response to the above foregoing submissions, both learned counsel for the Respondents have in their respective briefs of argument contended that the onus of proof rested squarely on the petitioner (i.e. Appellant) throughout to establish by evidence the averments in his petition particularly as per paragraphs 9 and 10 of the same or have the petition dismissed and that paragraphs 13(2) and 17(1) of Schedule 5 of Decree No.5/1999 were totally misconceived. See Sanusi v. Abieyogun (1992) 4 NWLR (Pt. 237) 527: Boaimah v. Abasi (1998) 10 SCNJ 85; (1998) 13 NWLR (Pt.581) 167 at 94-95 and Agwu v. Ibeniye (1998) SCNJ 1 at 25; (1998) 11 NWLR (Pt 574) 372. In reinforcement of the above submissions it was contended that since the Respondents were not challenging the facts and figures contained in Exhs 1 to 5 and 13 to 17, there was no apparent need reproducing the same facts and figures all over again when they were already pleaded hence it was futile invoking paragraphs 13(2) and 17(1) of Schedule 5 of Decree No.5/1999 in aid of the appellant’ s contention. On the impact of Exh. 7 (i.e. the INEC manual for poll officials for National Assembly and Presidential Elections (1999) it was highlighted that it was nowhere stipulated therein that only accredited voters in the queue were to be allowed to vote. The 1st Respondent’s counsel has contended that it was not always when the number of accredited voters exceeded the number of accredited voters in the queue that the case of over voting would result. It was however, strongly maintained that there was no question of over voting in the conduct of the instant election. Finally, the submission was made that the Tribunal was right in holding that the appellant did not prove his case for over voting and consequently, the court was urged to dismiss the appeal.

On the Tribunal’s part-after a careful deliberation on the issue of over voting as canvassed by both sides to the petition as well as the submissions thereon, the Tribunal having found the case for over voting devoid of merit dismissed it as not proved. In evaluating the evidence of D.W.7 – the presiding officer for Kamkun polling unit, it accepted the testimony and described it as “very illuminating” particularly the answers under cross-examination by appellant’s counsel. Besides, the Tribunal after evaluating the evidence of the Respondent’s witnesses had no qualms in reaching the conclusion that their testimonies on the issue of over voting were similar and that they denied it. I have not seen any reasons to hold the same as perverse. However, DW7’s evidence shed light onto the conduct of the election more so with reference to post accreditation and conduct of poll periods as regard Kamkun polling unit. The law is well settled that an appeal court will not disturb the finding of a trial court supported by evidence and that the onus of showing that the trial court perversed in its judgment or that there was a miscarriage of justice is on the party so impeaching it and in this appeal – the appellant. See Woluchem v. Gudi (1981) 5 S/C 291 at 326 – 377, Board of Customs and Excise v. Barau (1982) 10 S/C 48 at 137-138.

The crux of the appellants case in this appeal is clearly hinged on Exhs.1 to 5 tendered to support over voting. Exh. 7 – has stipulated an important guideline on voting procedure for the INEC poll officials in the conduct of elections thus:

“Voting will commence at 11.30am or soon as possible afterwards if accreditation causes delays. Voting will end at 2.30 p.m. or when the last accredited voter who has been present at the polling station since accreditation has voted”.

(underlining mine for emphasis).

Further at page 9 of the same Exhibit (i.e. Exh. 7) is set out another stipulations thus:

“Any person who arrives at the polling station after 11.00am must not be accredited nor allowed to vote.”

“Any person who arrives at the polling station after 11.00am must not be accredited nor allowed to vote.”

Exh 7 it must be doubly emphasized is INEC’s manual on the conduct of election and it is not being challenged on appeal. Even then I would loathe to think that INEC would deliberately want to undermine the electoral process by issuing Exh. 7 to its poll officials if it (i.e. INEC) were not acting within the provisions or the relevant provisions of Decree No.5/1999 governing the conduct of elections as the instant one being disputed. I make this observation in view of the clear and simple instructions exemplified as per the above excerpts to its poll officials.

In grappling with this issue of over voting in the context of this appeal it seems to me that solution can only be found by examining the provisions of paragraphs 22 and 23 of Schedule 4 of Decree No. 5/1999. These two paragraphs it must be emphasised are relevant in completing EC8A(1) forms i.e. such forms as Exhs 1 to 5 and in computing over voting. In this regard appellant’s contention is that the number of accredited voters as against the number of accredited voters in the queue (at the commencement of voting) showed clear indication of over voting in five polling units as reflected in Exhs 1 to 5. These two paragraphs therefore become very crucial. Paragraph 22 provides thus:

22 “At the close of accreditation, the presiding officer shall (a) explain the voting procedure to be followed.

(b) introduce the candidates, their symbols, the poll clerk and the party agent.

(c) explain all activities which constitute election offences within the polling zone including, penalties for committing each offence.

(d) call the roll of accredited voters.

Paragraph 23 provides: After compliance with the provisions of paragraph 22 of this Schedule, the presiding officer shall

(a) announce the commencement of voting;

(b) request the accredited voters to line up in a single line;

(c) separate the queue between men and women if, in that area of the country, the culture is such that it does not permit the mingling of men and women in the same queue;

(d) request security agents or poll orderlies to stand at the end of the queue behind the last accredited voter and request the voters in the queue to show their voters’ cards duly stamped by the presiding officer;

(e) issue accredited voter with ballot papers;

(f) direct voters to the voting table where after thumb marking the ballot paper secretly, they shall vote in the full view and all present;

(g) court the votes at the close of poll in the presence of the voters: and

(h) announce the number of votes counted for each of the candidates”.

I have taken great pains to set forth these paragraphs for reasons of their relevance in this appeal. Having found these provisions clear and unambiguous they have to be given their grammatical meaning and interpreted literally. Suffice it to say, that I also find that the stipulations as per the excerpts from Exh 7 above were clearly distilled from paragraphs 22 and 23 of Schedule 4 of Decree No. 5/1999. Reading the provisions or paragraphs 22 and 23 of Schedule 4 of Decree 5/1999 against the stipulations in Exh 7 there is no misgiving that the appellant’s contention that only accredited voters in the queue were to be allowed to vote is thereby rendered otiose. Exh 7 has said it all by the excerpts of the stipulations above that voting will end at 2.30pm or when the last accredited voter who has been present at the polling station since accreditation has voted. It has also made it clear that an accredited voter who has been present at the polling station since accredited has voted. It has also made it clear that an accredited voter so long as he was in the polling station has to vote: see also paragraph 29 of Schedule 4 of Decree No. 5/1999. To adhere to the appellant’s assertion that only accredited voters in the queue were the only voters to vote is therefore anachronistic. The testimony of DW7 which the Tribunal held was illuminating was to the effect that some accredited voters who were allowed to sit beside the queue were the sick, the aged ones and those that could not stand in the sun as they were already within the polling station. Appellant’s counsel has protested rather vehemently against this finding founded on DW7’s evidence which in the one breath was tagged inadmissible and in another breath was tagged inadmissible and therefore went to no issue. I find the appellant’s counsel’s submission in this regard, with respect, totally misconceived. He asked one question too many and got answers he did not bargain for and which greatly undermined and indeed, knocked the bottom of his case. Naturally, he is stuck with the answers. It is trite that in such circumstances he cannot pick and choose from relevant answers to this questions as it suits him. The point has to be made that DW7’s evidence under cross examination in no way whatsoever tried to impinge on the cogency or otherwise of Exhs. 1 to 5 as documentary evidence.

To drag in, as it were, paragraph 15(2) of Schedule 5 of Decree No.5/1999 into this matter as a means to challenge the credibility of DW7’s evidence is totally irrelevant and non sequitur. There is of course no basis for remotely suggesting that DW7’s answers under cross-examination ought to have been pleaded before admitting them in evidence as they emanated from cross examination unchallenged.

The appellant has cited and relied on the cases of Terab v. Lawan (1992) 3 NWLR (Pt.231) 569 and also the unreported judgment of the court of Appeal No.CA/PH/EP/105/99 between Mr. M. Ekeman v. Mr. Eugene Chub Onyeji & Ors. delivered on 23/4/99 on the issue of over voting. I must confess that I do not find the decision helpful in deciding the narrow issue of over voting in the context of the peculiar provisions of paragraphs 22 and 23 of Schedule 4 of Decree No.5/1999. I must, however, hasten to add that the Terab v. Lawan case (supra) was decided against the background of Decree No.50/1991 – which made queuing a necessary and mandatory requirement for voting under the electoral process generally known as “Option A4”. In that process voters were required to line up in single line in front of the candidate of their choice after accreditation und were counted aloud – See paragraphs 16 and 17 of Schedule 5 of Decree No.50/1991. Be it noted that the provisions of paragraphs 17(b), (d), (e) and (f) of Schedule 5 of Decree No.50/1991 particularly relate to the peculiar features of “Option A4” and were not replicated in any of the Schedules of Decree No.5/1999. The Terab v. Lawan case supra was decided under a totally different electoral process to that under which the instant election was conducted, and so on the issue of over voting, the Terab v. Lawan case would only prevail if the circumstance were similar but they are not. In other words, the Terab v. Lawan case may not come readily handy in effectively construing the issue of over voting as regards conduct of poll as envisaged under paragraphs 22 and 23 of Decree No. 5/1999 – as voting under these paragraphs is essentially controlled through ballot papers issued by the presiding officers and the casting of votes in a ballot box in the full view of other voters what seems to have emerged from my conclusions above is that any accredited voter within the precincts of polling station would be allowed to vote. There is of course much to be said for filing in a single line to vote in any election as it makes for orderliness during voting. However, on the peculiar facts of this matter the excess of accredited voters over the accredited voters in the queue as contended by the appellant’s counsel did not represent over voting. I am satisfied that the Tribunal was right in view of the preponderance of evidence adduced by the defence in holding that there was no over voting in this matter.

For all this, therefore, the appellant failed to discharge the onus of proof of showing that the Tribunal’s judgment was preserve or that there was a miscarriage of justice, as the issue of over voting was not proved. In other words, there is no legitimate ground whatsoever for disturbing the Tribunal’s finding in this respect.

As regards Issue No.2, Exh 6 is the bedrock on which the appellant rested his case for alleging that the 1st Respondent was not qualified to have been elected. Exh 6 – 18 “Government views and decisions on the report of the Committee on the Recovery of Government Property and Money from the former State Legislators and Local Government Political Office holders in Plateau State” and was dated June 1994.

In paragraph 9(g) of the petition, the appellant pleaded thus:

“That the Respondent was not qualified to have contested the election in that he was indicted for embezzlement of public funds and/or fraud committed when he was the Secretary to Langtang North Local Government Council by the Committee on Recovery of Government Property and Money from the former Legislators and Local Government Political Office holders in Plateau State set up by Government of Plateau State in December 1993. At the hearing of this petition, your petitioner pleads and shall rely on the Government views and decision on the report of the said Committee i.e. the white paper dated June 1994”.

Exh 6 had the terms of reference classified under 6 heads namely –

“(a) To ascertain the type and quantity of Government property in the possession of each of the former legislators and to ensure that the same are returned immediately, failure of which the defaulting legislator should be surcharged the value of the missing property and payment collected by the committee.

(b) To ascertain the Loans/Advances received by each of the former legislators and ensure repayments are made accordingly.

(c) To ensure that all items and funds collected are put in appropriate custody pending directive.

(e) To submit a comprehensive report to the Military Administrator within 6 weeks of their inauguration.

(f) The scope of the committee’s assignment was later extended to cover recovery of government property, loans/advances from the chairmen, deputy chairmen, councillors, legislators and other political appointees in all the 23 Local Government areas of the State”.

The appellant gave evidence and tendered Exh 6. He did not call further evidence in this regard. The 1st Respondent’s evidence was to the effect that the money sought to be recovered from him was Insurance Allowance. The report of the Committee was not tendered. The Tribunal found that there was no evidence of indictment of the 1st Respondent and dismissed the allegation as unfounded. And the appellant is hereby objecting to it S.19(1)(g) of Decree No.5/1999 is the relevant provision in point and it provides thus:

19(g) No person shall be qualified for election to the Senate or House of Representative if

(a) not applicable

(b) not applicable

(c) not applicable

(d) not applicable

(e) not applicable

(f) not applicable

(g) he has been indicted for embezzlement of public funds or for bribery or fraud by a Judicial Commission of Inquiry, an Administrative panel of Inquiry or a Tribunal under the Tribunals of Inquiry Act or any other law set up by the Federal, State or Local Government which indictment has been accepted by the Federal, State or Local Government or Area Council.” Basically, the onus of showing that the Tribunal’s finding on Exh 6 is perserve or wrong is squarely on the appellant. There is no evidence from the appellant to show the circumstances of embezzlement, that is, how it came about. The report of the committee which could otherwise throw light on this aspect of the matter was not tendered nor was the failure to do so explained away. There were a lot missing links in the evidence of the appellant thereby making his allegation in this regard highly speculative. Having failed to skip the first hurdle of evidential burden the stage could not be reached to examine and evaluate the evidence against the background of the provision of S.19(1)(a) of Decree No.5/1999. See S.135 of Evidence Act 1990; Okonkwo v. Okonkwo & Ors. (1998) 2 SCNJ 246 at 254; (1998) 4 NWLR (Pt. 571) 554.

Appellant’s counsel has not made out any grounds for reversing this finding of the Tribunal in this respect. The factors that constitute disqualification under S.19(1) (g) of Decree No. 5/1999 are not in doubt -the appellant has to show that there was an indictment that the indictment was accepted by Government of Plateau State. He has left these loose links to surmises. Accordingly, I have not seen any grounds to enable the court to intervene in any manner whatsoever. This disposes of issue No.2.

On the whole the Appeal lacks merit and it is hereby dismissed with N2,000.00 costs to each set of Respondents.

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Other Citations: (1999)LCN/0553(CA)